If you wish to purchase or develop an area of open land it is essential that you check whether the property is registered as common land or as a town or village green. If the land has been registered in this way it will be very difficult to develop it and it is unlikely that you will be able to drive across it. Members of the public will probably have access for recreational purposes and the land may well be subject to third party rights (for example, to graze animals on common land).
How can you tell whether land is common land or a town or village green?
The law relating to both common land and greens has its origins in common law, having developed during the Middle Ages, though with some historical statutory regulation. However, the Commons Registration Act 1965 (the “1965 Act”) introduced a new regime, designed to preserve and improve common land and greens. This has been updated by the Commons Act 2006 (the “2006 Act”), which is still in the process of being brought fully into force. Since 1970, land will only be common land or a town or village green if it has been so registered.
What is common land?
“Common land” is simply land (usually privately owned) which another person has rights of common over. A right of common is a right to take something naturally produced by the land. Such rights include: the right to graze animals; the right to fish; the right to dig turf or peat; the right to take wood; and the right to take sand, gravel or other minerals. Grazing rights were originally defined by reference to the commoner’s own nearby land; this changed in 1965, so that grazing rights in existence at that time became independent of the commoner’s land (a “right in gross”). However, under the 2006 Act, new rights in gross cannot be created and it is possible to apply to attach existing rights in gross to a particular piece of land (the “dominant tenement”).
What is a green?
A town or village green is an area of open space which is used by local inhabitants for the purposes of recreation and playing games. The distinction between “town” and “village” is relevant only as a way of identifying the nature of the settlement that the green lies within. It is historically possible for common rights to exist over a green, though new common rights cannot be created over greens.
How to find out whether land is common land or a green
A commons registration search is made by raising an enquiry of the Local Authority, and covers both common land and greens. This should be done automatically by your solicitor whenever land is being acquired that comprises undeveloped or newly developed land, is accessed across undeveloped land, is separated from the public highway by a strip of land, or abuts a green, common or other open land. A commons search should not be restricted to rural areas as small areas of open urban land may also be registered; even a tidal beach is capable of being registered as a green. In addition, anyone who wishes to do so has the right to inspect and make copies of the register, any documents referred to in it and any documents relating to applications that have been made.
The search will tell you whether there is any existing registration affecting the land, but it does not give any official protection, or any guarantee against future registrations; the local authority does not accept any liability for incorrect replies unless caused by its own negligence. It is therefore be advisable to visit the land in question, observe how it is being used and speak to neighbouring landowners and people living locally about any rights that they are aware of. However, care should be taken not to trigger an application to register the land as a green!
While it is very unlikely that new rights of common will be created, the absence of registration of land as a green does not preclude future registration. In fact it has been a common tactic of those opposed to development of an open space to seek to register it as a green; this has prompted significant changes, in the Growth and Infrastructure Act 2013 (“GIA 2013”), which make registration more difficult.
The 1965 Act imposed a duty on county councils to create and maintain registers of common land and greens. Registrations had to be made by 31 July 1970, with any objections to a registration being required within two years. Land that was eligible for registration but that had not been registered by the deadline ceased to be common land or a green and rights of common were no longer exercisable. The one exception to this deadline was “land on which the inhabitants of any locality had indulged in sports and pastimes as of right for not less than 20 years”: greens falling into this category continued to be registrable.
The task of registration was complex – some land that should have been registered was struck out, some was overlooked and many greens were incorrectly registered as common land. The scope for correcting errors is extremely limited and there was no obligation to actually maintain the registers, meaning that they quickly became out of date. In addition, the 1965 Act failed to make provision for the management of common land or introduce public access rights.
The 2006 Act therefore has the aim of improving and modernising the law on registration, management and protection of common land and greens. While the provisions in respect of registration are only force in seven pilot areas, new greens in other areas can be protected using secondary legislation which has an equivalent effect. The new registers include both the registration information from the 1965 Act registers and details of new registrations under the 2006 Act. This note describes the current position in England – note that the law applies slightly differently in Wales.
New rights of common may only be created by statute or by express grant: they can no longer be created by prescription (long use). Rights of common cannot be created over a green and the new right (including a grazing right) must attach to a dominant tenement (the commoner’s land). An existing right of common will be varied if the right becomes exercisable over new land (either instead of, or in addition to the current common land) or there is any other alteration to what can be done (eg an increase in grazing numbers). However, it cannot be varied so that the right becomes exercisable over a green, or be extended where the rights currently exist over a green.
Where a right of common attaches to the land, the land with the benefit of that right may subsequently be divided into separate ownership. For example, if a farm has the right to graze 50 sheep on neighbouring common land and that farm is subsequently sold off and developed into 25 houses on equal plots, those houses will each have the right to graze two sheep. While the 2006 Act allows for regulations to be made to deal with amending the register to show apportionments, it is likely that the rights will simply be shown as attached to the dominant tenement as registered, with subsequent owners being able to trace their entitlement through this.
Except in limited circumstances, it is no longer possible to sever rights from the dominant tenement: this means that a land owner with a right to graze cannot generally pass that right onto someone else without selling his land (and he cannot sell the land but retain the rights). Any apportionment of the rights must be done on a pro-rata basis, according to the area of land sold, otherwise this could be used as a way to effectively sever the rights. The only exception to this is where part of the land is being sold off for non-agricultural purposes (for example, to be turned into a road): in this situation it is possible to apply to have the rights reallocated to the remaining agricultural land.
It is possible to surrender a right of common, but the rights cannot be terminated in any other way (for example, they are not extinguished by the common land and the dominant tenement coming into the same ownership).
Town and Village Greens
Under the 2006 Act, the key requirement before land can be registered as a green is that “a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.
Any kind of open space can potentially be a green – it need not be a traditional grassy area. While it’s not necessary that every square foot of the land be used for sports and pastimes, an application won’t succeed where a significant part of the land is so overgrown as to be inaccessible. Use must be by the local inhabitants in general, but the fact that outsiders also use the land, or that a relatively small number of people actually use it, will not prevent registration. There are no particular requirements as to the sports or pastimes that are carried on and no need for there to be more than one in order to qualify.
Use “as of right” means without the permission of the landowner and without secrecy. As soon as the landowner gives his permission to the use, or objects to the use, it stops being “as of right”; where the use has been continuing for less than 20 years, this can be used as a way to defeat a claim that a piece of land is a green but where the use has already been “as of right” for at least 20 years, giving permission or raising an objection will not be effective and will not defeat an application for registration. However, it is now possible to deposit a landowner statement and map with the commons registration authority, bringing to an end any period of use “as of right”. Note that this does not prevent a new 20 year period from starting to run: it simply signals an end to the previous period.
When working out the 20 year period, any time during which access was prohibited by statute (eg during the foot and mouth outbreak) is disregarded – so time stops running when access stops and restarts when access is reopened.
Provided that a “trigger event” has not occurred (see below), anyone can apply to register land as a green. The relevant time for assessing whether the use is continuing (or how long ago it ceased) is the date on which the application is made. Where the use “as of right” comes to an end there is a one year grace period within which it is still possible to make an application; this includes the situation where the use is brought to an end by depositing a landowner statement.
The owner of a piece of land is also able to voluntarily apply for it to be registered as a green. He does not need to demonstrate any past use, but he will need the consent of any tenant with a lease granted for seven or more years and of certain charge holders.
This note does not cover the detailed procedure for registering land as a green. However, be aware that the procedure differs depending on whether or not the land lies within one of the pilot areas.
Trigger events for greens
In response to the increasing use of greens applications as a tool for delaying development, an important change for developers was introduced by the GIA 2013. An application to register land as a green cannot now be made if there has been a “trigger event” in respect of the land. These trigger events include the first publication of a planning permission for the land: following publication of the permission, the right to apply is excluded until a terminating event occurs (eg the application is withdrawn, refused or the granted permission expires). However, the exclusion of the right to apply does not affect the accrual of a period of use as of right or stop any continuing use from being “as of right”. In addition, where the use as of right has already been terminated, the one year grace period will simply pause, so the right to register is not lost if the development does not go ahead.
For example, A Ltd owns a large piece of open land which has been used for dog-walking and casual games of football for the last 25 years. A Ltd decides to sell the land for development purposes. He deposits a landowner’s statement, bringing the use as of right to an end: at this point the one year grace period starts to run, but no-one makes an application to register the land as a green. B Ltd agrees to purchase the land, subject to planning permission being obtained. The application is made and published, six months after the statement was deposited. A month later a local resident applies to register the land as a green but this application will be rejected as a trigger event has occurred; however, only six months of the grace period has expired – the remaining six months are simply on hold. The permission is subsequently granted, with a requirement that development must begin within two years, and the sale to B Ltd goes ahead. Unfortunately, B Ltd goes into liquidation shortly after completing the purchase and two years later development still hasn’t started. This is a terminating event, meaning that the local resident now has six months from the date of that terminating event in which to make an application (despite the fact that well over a year has passed since the landowner’s statement was deposited and use “as of right” was brought to an end).
Once land has been registered as common land or a village green, getting it off the register is not a simple process.
The owner of the registered land can apply to the Secretary of State for the land to be released. Where it has an area of more than 200 square metres, the application must include a proposal to register an alternative site in exchange. Where the area is 200 square metres or less an exchange can be offered but this is not required. The application can only be made if the landowner has the consent of any tenant with a lease granted for seven or more years, and of certain charge holders.
In reaching its decision the Secretary of State must consider the interests of those who have rights over and who occupy the land, the interests of the neighbourhood and the public interest, including the conservation of nature and the landscape, the protection of public rights of access and the protection or features of historic interest. Where no exchange is offered there must also be a consideration of the extent to which this is detrimental to the interests of the public, the neighbourhood and those with rights over the original land.
Management and carrying out works
Greens in local authority ownership are usually managed by the authority, under statutory powers. Some privately owned greens are also managed by local authorities in a similar way. However, there is no specific provisions for the management of privately owned greens and no obligation on anyone to maintain them, though the landowner does have the power to maintain. To help resolve uncertainty over management, a district council, unitary authority or National Park authority may make a scheme of regulation for a green. The effect of the scheme is to place management of the green into the hands of the council or authority. The owner of the green may veto a scheme before it is confirmed, but it is often easier to allow management to be transferred.
Prior to 2010, there was no effective system for managing common land; however, the 2006 Act introduced commons councils. A commons council’s functions will depend upon the nature of the land that it is managing but may include managing agricultural activities and rights of common, maintaining boundaries and keeping a register of grazing. Commons councils must have regard to conservation of nature and the landscape, the protection of public rights of access and the protection or features of historic interest.
Works on common land
The 2006 Act requires that the consent of the Secretary of State is obtained before carrying out any works on registered common land where those works would prevent or impede access to or over the land (eg fencing, constructing buildings, digging ditches and trenches or building embankments) or would involve resurfacing. There are limited exceptions to this: for example, works carried out under statute are permitted as are works for installation of certain telecoms equipment; specified people may erect temporary fencing for the purposes of nature conservation or restricting the movement of grazing animals; and in certain circumstances it is permissible to install obstacles to prevent vehicular access.
There is a prescribed procedure for obtaining the Secretary of State’s consent. In considering an application the Secretary of State must have regard to the interests of those who have rights over and who occupy the land, the interests of the neighbourhood and the public interest, including the conservation of nature and the landscape, the protection of public rights of access and the protection or features of historic interest.
If works are carried out in breach of these requirements, or not in accordance with a consent received, anyone is able to apply to the County Court for an order either that the land is restored to its former state or that the works are modified to comply with the consent.
Works on greens
The successful registration of land as a green means that it will be protected by several long-standing statutes (the “Victorian Acts”): effectively, it can no longer be developed. It is a criminal offence to cause any injury or damage to a fence on a green, take cattle or other animals onto it without authority, leave any rubbish or other material on it or in any way interrupt the use or enjoyment of it. A public nuisance is committed by anyone who encroaches on or encloses a green or erects any structure on it unless done “with a view to the better enjoyment” of it.
Unlike for common land, there is no consent procedure for carrying out works on a green: if the works contravene the Victorian Acts, no one is able to give permission for them. The only option is to seek consent to deregister the green. If the works do not contravene the Victorian Acts they will be allowed, but usual permissions (eg planning permission) will still be required.
When buying land for development, the developer needs to not only check whether there is any current registration affecting the land but also put himself into a position to assess the potential for a future application to be made. The developer will need to:
- Understand when and how an application can be made
- Carry out a site inspection
- Make appropriate enquiries of landowners and local residents
While there is still some risk involved in acquiring land that may be subject to an application for registration as a green, the introduction of landowner statements and trigger events in the GIA 2013 gives developers significant protection.